Choosing an Ombudsman: Revelations from the 1987 NSW Cabinet Papers

Choosing an Ombudsman: Revelations from the 1987 NSW Cabinet Papers

The choice for New South Wales’ Ombudsman in 1987 came down to a senior Departmental head and a solicitor with a familiar name in Labor circles; the latter promising a less contested relationship between the government and the Ombudsman’s Office after years of strife between the two.

Cabinet papers for the NSW Government, recently released under the “30 year rule” still applicable in NSW, offer an insight into the appointment of David Landa as NSW’s third Ombudsman.

While the selection panel narrowed the eventual choice to Landa, a prominent solicitor with strong Labor connections, and Trevor Haines, the then Secretary of the Attorney-General’s Department, an impressive shortlist was interviewed, with gender and (relative) youth no bar to inclusion.

However, reducing the eventual choice to Landa and Haines seemingly reflected a desire to create a more harmonious relationship between government and watchdog than existed during the term of George Masterman, QC, who held the post between 1981 and 1987.

While Premier Barrie Unsworth made the recommendation to Cabinet on 15 December 1987, he was acting on the advice of a selection committee, headed by Gerry Gleeson, the all powerful head of the Premier’s Department. Also on the panel were Ken Robson, the auditor general; Helen Gamble, the chair of the NSW Law Reform Commission; and, controversially, John Ducker, the long time Labor power broker and former head of the NSW Labor Council, in his capacity as Chairman of the Public Service Board.

Gleeson had famously warned former Premier Neville Wran in 1981 that he would come to regret the appointment of the fiercely independent and strong-willed Masterman as Ombudsman. With Ministerial conduct beyond the remit of the Ombudsman, Wran and his ministers were rarely directly challenged by the office, and indeed (at least early in Masterman’s term) reportedly valued it as instrumental in achieving public service reform. In a caucus meeting in 1982, when challenged by a backbencher to “do something” about the Ombudsman, Wran reportedly replied: “He is there to be a burr in the saddle of the Government, not to make life easy for us.”

But nevertheless, with a growing focus on corruption, the relationship between Ombudsman and government had grown tense – largely over the issue of police complaints. The Ombudsman’s civilian oversight of police would be bitterly contested by police, the Police Association and police ministers through the Wran-Unsworth and Greiner-Fahey governments. These tensions were never really resolved until the reforms of post-Wood Royal Commission era.

In 1984, Masterman also controversially expressed concerns about the number of prosecutions no-billed by the Attorney-General that year, suggesting that at least one major prosecution had been halted “in scandalous circumstances”.

With some progress on the police jurisdiction, Masterman made the decision in September 1987 to step down as Ombudsman – some nine months before his term was due to expire. He expressed hope that his successor would be appointed ahead of the imminent election, to maximise scrutiny of the appointment and prevent cronyism being a factor. The Government moved swiftly to secure a successor, advertising for expressions for interest a week after Masterman’s announcement.

(Advertisement, Sydney Morning Herald, 12 September 1987, p. 15)

The Candidates

There were 28 applicants for the role. Seven were interviewed. However, the selection committee eventually advised that it thought only two suitable for the post: Haines and Landa.

At the time of his application, Haines was the Secretary of the Attorney-General’s Department, a post he had held in its various permutations since 1978 after rising through the departmental ranks. Rumour had it that he had been destined for a District Court appointment in 1984, which he had resisted. The impasse apparently came to an end with the sudden death of the then Attorney-General, Paul Landa (as chance would have it, David’s cousin).

But in 1987, Haines was in the sights of the Liberal Opposition, even if only as collateral damage in an attempt to make a hit on the Government. As part of its ongoing campaign against corruption, the Opposition renewed its focus on allegations concerning attempts to influence Labor aldermen on Botany Council that had surfaced in 1974. At issue was whether in 1976, when dismissing an indictment against Laurie Brereton, then Attorney-General Frank Walker had not considered legal advice favourable to prosecution, or whether Haines had failed to show it to him.

(Headline, Sydney Morning Herald, 30 May 1987, p. 8)

Famed anti-corruption campaigner, independent MP John Hatton, used the controversy to raise separate allegations that Haines’ nephew had received an unduly lenient sentence on a shoplifting charge.

While neither matter went much further or caused lasting harm to Haines’ standing, it must have given him some cause to consider a move from the Attorney-General’s Department to see out his career in the public service from the security of a seven year term as Ombudsman. The advice to Cabinet was that Haines would offer “stability and maturity”.

(Excerpt from Cabinet Minute No. 447-87 – held at NSW State Archives and Records.)

However, Unsworth advised the Cabinet that Landa had impressed the selection committee with his views on the role of the Ombudsman and how he would perform that role. Landa’s initial application indicated he wanted a low profile in the job, thinking that it was not the place of the Ombudsman “to impose his will for change through the media”. He believed the Ombudsman’s profile should be more akin to a judge, with the public barely aware of the identites of those delivering justice. He also thought there had been too much conflict over the Ombudsman’s jurisdiction, and said he believed that the role was already clearly set out in legislation.

The recommendation to Cabinet advised Landa “exhibited a determination to seek to redress wrongs”, which might have been understood as an intention to focus on individual grievances rather than systemic failures.

(Excerpt from Cabinet Minute No. 447-87 – held at NSW State Archives and Records.)

On his appointment being made public, Landa confirmed the approach he articulated in his selection process. He said there needed to be fence mending with the NSW Police. On his first day in the job, he expressed the hope that it would be the last day his name would be heard, again arguing that it wasn’t a “personality position”.

The Landa name was well known in Labor politics. His cousin, Paul, held a number of high profile ministries in the Wran Government and figured large in speculation about the leadership in a post-Wran era, until his death from a heart attack in 1984.

David’s father, Abe, had been a leading figure in post-war state Labor administrations. However, that relationship was strained in 1965 when Abe accepted the offer of Agent-General to London from the Liberal Government of Robert Askin so as to cause a by-election to improve the Coalition’s position in the Legislative Assembly. As a result, Abe was expelled from the ALP.

David himself acted as lawyer for the NSW Labor Council, and its various entities such as 2KY, in workers compensation and defamation law.

Neither Landa nor Haines had featured in media speculation about potential candidates for the post ahead of the selection process. In November 1987, John Slee, then the Sydney Morning Herald’s legal affairs writer, identified the leading candidates as Hans Heilpern (then head of Youth and Community Services) who had applied but not been interviewed; Jack Goldring, a legal academic and former dean of Macquarie University’s Law School (who was one of the shortlisted candidates interviewed); Brian Jinks, then the Deputy Ombudsman and acting as Ombudsman after Masterman’s departure (again shortlisted); and Terence Purcell, then head of the NSW Law Foundation, a publicly funded body set up to improve access to justice in NSW. Purcell said at the time that he had not applied for the position; a fact confirmed by the Cabinet submission.

The other short listed applicants were Geoffrey Nicholson, a NSW Crown Prosecutor; Philippa Smith, a consumer advocate; and Merrilyn Walton, head of the complaints unit in NSW Health. Nicholson, Smith and Walton were each in their mid to late 30s at the time of their application. Goldring was 44 years old, and Haines and Landa were in their early 50s. The Ombudsman Act requires the office holder to be under the age of 65, with a term (potentially renewable) of up to seven years.

Among those not even short listed were Alan Sutton, the Director of the NSW Bureau of Crime Statistics and Research; Jim Coombs, a barrister, and formerly, an Ombudsman investigator; Hugh Selby, another barrister; Ian Knight, then an Assistant Crown Solicitor, who would go on to be Crown Solicitor.

Another applicant not short listed was the prominent prisons reformer, Tony Vinson, who had resigned as head of the Corrective Services Commission (CSC) in 1981 amidst controversy over perceived “softness” in the direction of prison management. Gleeson had reportedly been part of a panel that had recommended against Vinson for the post in 1979, telling a delegation at the time that the job required an “experienced administrator”. In 1986, back in academia, Vinson had been one of the authors of a controversial paper asserting lenient treatment of a particular solicitor’s clients by an unnamed judge. The resulting furore saw the judge named, and later retire on medical grounds.

Interestingly, despite the initial advertisement stating that legal training would be favourably considered, three of the seven on the shortlist had no legal qualifications: before joining the Ombudsman, Jinks was an academic in public administration; Smith was an economist; and Walton’s background was in social work, but she had worked for the Queensland Legal Aid Commission.

Landa’s appointment, however, continued the practice of appointing people with legal qualifications as Ombudsman, a practice continued through to the current day.

Of the unsuccessful shortlisted applicants:

Jack Goldring would go on to found the Law School at the University of Wollongong, serve (separately) on the Australian and NSW Law Reform Commissions, and in 1998 was appointed a District Court judge (a rare appointment for a career academic). He died in 2009.

Notwithstanding being in the Opposition’s sights in 1987, Trevor Haines would continue to head the Attorney-General’s Department during the Greiner Government, retiring in 1991. Early in the term of the new government, Greiner secured a 15% increase in Haines’ salary, making him one of the highest paid public servants at the time.

Brian Jinks would leave the Ombudsman’s Office after failing to get the nod for the top job, and go on to be Secretary to the Legislative Council Standing Committee on State Development.

Geoffrey Nicholson would be made a QC in November 1988, and continue a distinguished career at the Bar. He died in 2012.

Philippa Smith would be appointed Commonwealth Ombudsman in 1993. Following the end of her term in 1998, she went on to be CEO of the Association of Superannuation Funds Australia, and subsequently to board appointments in food standards, superannuation and the telecommunications industry ombudsman.

Merrilyn Walton would become the first Commissioner of the NSW Health Care Complaints Commission in 1994, which would evolve from the complaints unit she headed in NSW Health. She has since gone on to academia in public health, medical ethics and patient safety.

Landa as Ombudsman

As for Landa and his time as Ombudsman, his hopes for a low profile were almost immediately sunk – in part, by his predecessor, Masterman. During the campaign for the March 1988 election, Opposition police spokesperson, Ted Pickering, promised that the Ombudsman’s police oversight function would be limited to matters where the conduct constituted a serious criminal offence.

Masterman sought to undermine the effect of the promise by revealing he had been told by Pickering, in a private meeting in mid-1987, that he had no intention of following through if elected, and that the promise was made only to keep the Police Association on side for the election.

Whatever the truth of Masterman’s assertion, it had the effect of locking in the commitment. With the election of the Greiner Government, and Pickering’s appointment as Police Minister, Landa started making a public case against curbing the Ombudsman’s oversight of police. An Upper House inquiry was soon launched, which after much tumult and controversy, recommended against reducing the role of the Ombudsman.

Landa was also faced with the competing jurisdiction of the newly established and well resourced Independent Commission Against Corruption, and an able and willing media performer in Ian Temby, its first Commissioner.

Through his term, Landa would often suggest his relationship with the Government during Greiner’s term was more productive than his later experience with Greiner’s successor, John Fahey. As with Masterman’s relationship with Wran in the early years, Greiner saw the Ombudsman’s interventions as helpful in reforming the public sector. Again, it would be the police jurisdiction that would be the lightning rod in a worsening storm. Notwithstanding the Ombudsman’s broad remit for the entire NSW public sector, by the end of Landa’s term, close to two-thirds of the office’s resources was devoted to police complaints.

However, it was perhaps Landa’s damning criticism in 1992 of “major maladministration” in the Office of Aboriginal Affairs (which fell within the responsibility of Premier Fahey) that irreversibly ruptured the relationship. The fallout from the “Toomelah” report saw weeks of damaging headlines and affected the government-watchdog relationship to the very end of Landa’s term.

By the end of his term, the Ombudsman who had promised fence mending, less aggression and a reduced focus on personality and profile would be responsible for headlines like “Premier angers Landa” and “Landa attacks ‘stupid’ Ministers”.

Looking back on the process behind Landa’s appointment, one suspects that faced with the choice between a poacher turned gamekeeper in Haines, or the promise and assurances of a different, less combative style from Landa, Gleeson (and Unsworth) plumped for the latter. While the others on the shortlist may never have been in serious contention, they each (as their credentials and subsequent careers would show) would surely have performed the role with a different kind of distinction.